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Arlina Y. Polanco, Respondent v. Elaine Mabley and Stanley Mabley

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 5, 2012

ARLINA Y. POLANCO, RESPONDENT,
v.
ELAINE MABLEY AND STANLEY MABLEY, APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 2, 2011.

Polanco v Mabley

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2012

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from, denied defendants' cross motion for summary judgment dismissing the complaint based on plaintiff's failure to comply with a conditional order of preclusion.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendants' cross motion for summary judgment dismissing the complaint is granted.

In this personal injury action, the parties entered into a so-ordered stipulation which required plaintiff to provide full and complete responses to defendants' supplemental discovery demands within 30 days or "be precluded from offering all evidence and testimony at the trial of this matter as to liability and damages." The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff's failure to comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). "To avoid the adverse impact of the conditional so-ordered stipulation, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action" (State Farm Mut. Auto. Ins. Co., 43 AD3d at 908; see also Panagiotou, 66 AD3d at 980; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U]). Since plaintiff failed to do so, she is precluded from establishing her prima facie case.

Accordingly, the order, insofar as appealed from, is reversed and defendants' cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: March 05, 2012

20120305

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